Dr. Dorphy P. D. v. State of Kerala and Angamaly Municipality

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** # **TUESDAY, THE 25TH DAY OF JULY 2012/3RD SRAVANA 1934** ## **WP(C).No. 33408 of 2011 (A)** ## **------------------------------------** ## **PETITIONER:** - **------------------** **DR.DORPHY.P.D., S/O.P.C.DEVASSYKUTTY, POTTATHUPARAMBIL HOUSE, SHREYAS NAGAR, PALACE ROAD, CHALAKUDY P.O., PIN-680 307.** **BY ADV. SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENT(S):** **--------------------** **1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT LOCAL ADMINISTRATION DEPARTMENT, SECRETRIAT THIRUVANANTHAPURAM - 695 001.** **2. ANGAMALY MUNICIPALITY, ANGAMALY P.O., ERNAKULAM-683 572 REP. BY ITS SECRETARY.** **3. THE SECRETARY, ANGAMALY MUNICIPALITY, ANGAMALY.P.O. ERNAKULAM-683572.** **R1 BY GOVERNMENT PLEADER SMT.M.T.SHEEBA R2 & R3 BY ADV. SRI.R.S.SARATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** nk **WP(C).No. 33408 of 2011 (A) = = = = = = = = = = = = =** ## **APPENDIX** ## **=======** ## **PETITIONER'S EXHIBITS ===============** - **P1 COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 19.07.2010.** - **P2 COPY OF THE ORDER PASSED IN APPEAL NO.697/2010 BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DATED 15.09.2010.** - **P3 COPY OF THE NOTICE ISSED BY THE 3RD RESPONDENT DATED 14.10.2010.** - **P4 COPY OF MEMORANDUM OF APPEAL IN APPEAL NO.961/2010 ON THE FILE OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DATED 29.10.2010.** - **P5 COPY OF THE WRITTEN STATEMENT FILED BY THE 3RD RESPONDENT IN APPEAL NO.961/2010 ON THE FILE OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DATED 26.11.2010.** - **P6 COPY OF THE GOVERNMENT ORDER NO.9877/RD2/2010/LSGD DATED 08.09.2010.** - **P7 COPY OF THE ORDER PASSED IN APPEAL NO.961/2010 BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DATED 06.12.2010.** - **P8 COPY OF THE LETTER ISSUED BY THE GOVERNMENT DATED 15.10.2011.** - **RESPONDENTS' EXHIBITS: NIL** - **=================** ## **// TRUE COPY//** ## **P.A. TO JUDGE** nk **CR** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 33408 of 2011 --------------------------------Dated this the 25[th] day of July, 2012 ## JUDGMENT Challenge in this writ petition is against Ext.P3, P7 and P8 orders. The petitioner along with his wife had applied for building permit for construction of a Hospital building in a property situated within the limits of the second respondent Municipality. Through Ext.P3 letter the application was rejected and the petitioner was required to submit fresh plan, adhering to various stipulations contained in the Kerala Municipality Building Rules, 1999 (hereinafter referred to as the 'KMBR' for short). One of the main grounds on which the application was rejected is that the building contains more than 4 floors including the basement floor and hence it is a 'High Rise Building' coming within Rule 110 of KMBR. Therefore the applicants were required to satisfy all conditions and specifications enumerated in chapter XVII, especially in Rule 112 to 120. 2. The petitioner challenged Ext.P3 in appeal before the WP(C). 33408 /2011 2 Tribunal for Local Self Government Institutions. The appeal was dismissed through Ext.P7 holding that, in view of the amendment brought to Rule 110 with effect from 16.12.2009, the proposed building is a 'High Rise Building' and the applicants are bound to comply the conditions and stipulations pertaining to 'High Rise Buildings'. Contentions of the petitioner before the Tribunal was that the unamended law is applicable, because the permit application was submitted prior to the amendment. Tribunal repelled the contention holding that the law prevailing as on the date of sanctioning is the law which is applicable, in view of settled legal precedents. In Ext.P6 Circular issued by the State Government also the said position was clarified. Subsequent to dismissal of the appeal the petitioner approached the State Government through a representation, which was rejected through Ext.P8, stating that there is no provision for exempting any building from the prescriptions contained in the KMBR. The petitioner is challenging Exts.P3, P7 and P8. 3. While assailing Ext.P7 order of the Tribunal, counsel for petitioner contended that, even assuming the amended Rule is WP(C). 33408 /2011 3 applicable, the building in question cannot be considered as a 'High Rise Building'. As per Rule 110 (as amended) 'High Rise Building' means a building having more than four floors and/or 15 Metres of height. It further provids that, for the purpose of the said Rule the word 'height' shall be the height of the building as defined in clause (aq) in sub Rule (1) of Rule 2. In clause (aq) of Rule 2(1) the term 'height of building' is defined as the vertical distance measured from the average level of the ground contiguous to the building. In the 'Note' appended to clause (aq) it is clarified that in arriving the average level of ground the average of the levels of the lowest ground and the highest ground contiguous to the building shall be taken. In the case at hand the building in question is having basement floor, ground floor, first floor, second floor and third floor. The meaning of 'basement floor' under Rule 2(1)(j) is mentioned as the lower storey of a building below or partly below the ground floor, and it is synonymous with 'Cellar'. The meaning of 'ground floor' mentioned in Rule 2(1)(an) is, as the lowest storey of a building to which there is an entrance from the adjacent ground or street. WP(C). 33408 /2011 4 Contention of the petitioner is that going by the above said definitions the 'basement floor' cannot be reckoned for deciding as to whether it is a 'High Rise Building' or not. 4. The Tribunal found that the omission of the words 'from ground level' brought in through the amendment to Rule 110 will indicate that the building will come within the definition of 'High Rise Building'. But contention of the petitioner is that for measuring the vertical distance from the average level of the ground contiguous to the building, the basement floor need to be excluded. This is especially because the definition of 'basement floor' will clearly indicate that it is a storey of the building below the ground floor and the definition of 'ground floor' will indicate that it is a storey to which there is an entrance from the adjacent ground or street. Hence it is clearly evident that even after omission of the words 'from ground level' in Rule 110, height of the building need be computed only from the average level of the ground contiguous to the building. Therefore it is evident that for the purpose of deciding the 'height of building' basement floor (cellar) has to be excluded. WP(C). 33408 /2011 5 5. But in this case it is conceded by the Respondent Municipality in their counter affidavit that total height of the building is only 14.2 Metres. Therefore question arises with respect to the number of floors and as to whether the building in question is having more than four floors. The wording in Rule 110 “and/or ” will indicate that building having more than four floors also will come within the definition of 'High Rise Building', even if the height is below 15 Metres. In the case at hand the building is having four floors plus 'basement floor'. Therefore the question to be decided is as to whether the 'basement floor' can be counted as a 'floor' for the purpose of deciding whether it is a 'High Rise Building' coming within the purview of Rule 110. Learned counsel for the petitioner placed reliance on the decision of this Court in _Thripoonithura Municipality v. Ansal Buildwell Ltd reported in 2008(3) KLT 993._ Referring to the amendment brought into Rule 110, a learned Judge of this Court considered meaning of the term 'High Rise Building' and the question as to how height of the building is to be computed. The questions discussed therein also include the question as to whether the WP(C). 33408 /2011 6 ground floor can also be included as a 'storey' or 'floor' for the purpose of Rule 110. There is an observation contained in the decision, which reads as follows:- _“It does not stand to reason to accept an argument that basement floor also should be taken into account for deciding whether the building has more than four floors and for deciding the question as to whether it is a high rise building. A Learned judge of this Court in that case observed that, very expression “high rise building” connotes the idea of a building rising from the level of the ground or the street upon which the building abuts._ It is argued that based on the above said observation there is a clear indication that while computing the number of floors for the purpose of Rule 110, the 'basement floor' need be excluded. _6_ . As discussed above, going by definition of “ground floor” in Rule 2(1)(an) it is the lowest storey of a building to which there is an entrance from the adjacent ground or street. Rule 2 WP(C). 33408 /2011 7 (1) (af) defines the term 'floor' as the lower surface in a storey on which one normally walks in a building. It further clarified that the general term 'floor' unless otherwise specifically mentioned shall not refer to a 'mezzanine floor'. The 'Note' to Rule 2(1)(af) is as follows:- “ _The sequential number of floor shall be determined by its relation to the determining entrance level. For floor at or wholly above ground level, the lowest floor in the building with direct entrance from road/street shall be called as ground floor and the other floors above the ground floor shall be called in sequence as the first floor, second floor, third floor etc. with number increasing upwards.”_ Contention raised is to the effect that for the purpose of computing the number of floors in Rule 110 a harmonious construction of the above said definitions with the definition of “height of building” in Rule 2(1)(aq) need be adopted, and on that basis the number of floors shall be counted from the ground WP(C). 33408 /2011 8 floor onwards, excluding the basement floor. Going by definitions of various terms as enumerated above, I am inclined to accept the contention, prima facie. I noticed that in Rule 2(1)(j) itself it is indicated that the word 'basement floor' is synonymous with 'cellar'. The meaning of the word 'cellar' in most of the dictionaries indicate that it is the underground room for storing things or used for storage purpose. 7) The discussions in the foregoing paragraphs can be summoned up as follows. Rule 110 insist that a building will be treated as a 'High Rise Building' if its height from the ground level is more than 15 meters and/or if it has more than 4 floors. The said Rule provides that the 'height' shall be the 'height of building' as defined under Rule 2(1)(aq). 'Height of building' is defined as vertical distance measured from average level of the ground. In arriving the average level of ground, the average level contiguous to the building shall be taken as per the 'Note' appended to Rule 2(1)(aq). Therefore it is clear that while computing the height, the height of basement floor need not be reckoned. The definition of 'basement floor' in Rule 2(1)(j) WP(C). 33408 /2011 9 indicates that it is the storey of a building below the ground floor and it is synonymous with 'cellar'. The term 'cellar' means it is an underground room. So also the definition of 'ground floor' will indicate that it is a storey to which there is an entrance from the ground or street. The definition of the terms 'floor' assumes importance . The note added to Rule 2(1)(af) indicates that the number of floors shall be determined by its relation to the entrance level. It further says that the lowest floor in the building having direct entrance from the road/street shall be the 'ground floor' and other floors above the ground floor shall be called in sequence with the number increasing upwards. Therefore definitions of the terms 'floor', 'ground floor' and 'basement floor' when harmoniously construed will indicate that the 'basement floor' cannot normally be considered as a floor of the building as observed in the decision in **Tripunithura Municipality (cited supra)** . The term 'High Rise Building' cannots the idea of a building raised from the level of a ground or street. This concept when construed along with the provisions in Rule 110, which permits building having height up to 15 meters from the ground WP(C). 33408 /2011 10 level need not be included in the category of 'High Rise Buildings', will only indicate that the restriction with respect to number of floors need to be confined only with respect to ground floor and other floors above the ground floor. Therefore it is held that while categorising 'High Rise Building' the basement floor of any building which situate fully below the average ground level need not be reckoned. It is declared that for the purpose of Rule 110 while reckoning the number of floors the authorities concerned should exempt 'basement floor' if it is a floor intended at a level below the average level of the ground contiguous to the building. 8. In the result, the writ petition is allowed and Exts.P3, P7 and P8 are hereby quashed. Respondents 2 and 3 are directed to consider the application for building permit submitted by the petitioner and his wife and to dispose of the same afresh in accordance with the observations contained hereinabove, treating the building not as 'High Rise Building' coming within the purview of Rule 110 of the KMBR, if necessary after obtaining approval of the Town Planning Authority. This shall be done at WP(C). 33408 /2011 11 the earliest possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE nk/pmn WP(C). 33408 /2011 12